92 Decision Citation: BVA 92-16270
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-02 051 ) DATE
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THE ISSUES
Entitlement to service connection for claimed right ear
hearing loss.
Entitlement to an increased rating for residuals of right
shoulder dislocation, evaluated 10 percent disabling.
Entitlement to an increased (compensable) rating for
lumbosacral strain with narrowing of L5 - S1.
Entitlement to an increased (compensable) rating for left
ear hearing loss.
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
This matter came before the Board on appeal from rating
decisions of the Muskogee, Oklahoma, Regional Office
(hereinafter RO). The veteran served on active duty from
June 1982 to November 1990.
A July 1991 rating decision granted service connection for
lumbosacral strain with narrowing of L5 - S1, residuals of
right shoulder dislocation, and left ear hearing loss;
noncompensable ratings were assigned. Service connection
for right ear hearing loss was denied. A notice of
disagreement was received in October 1991. A statement of
the case as to the issues of increased ratings for back and
right shoulder disabilities was issued in November 1991. A
substantive appeal was received in November 1991. A
supplemental statement of the case on the issues of
increased rating for left ear hearing loss and service
connection for right ear hearing loss was issued in December
1991. A January 1992 rating decision assigned a 10 percent
rating for residuals of right shoulder dislocation,
effective November 16, 1990, the date following the
veteran's release from active duty. The case was docketed
at the Board of Veterans' Appeals (hereinafter the Board) in
March 1992.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended, in essence, that right ear hearing loss had
its onset in service. It is further contended that higher
ratings should be assigned for right shoulder and low back
disabilities, as well as for left ear hearing loss.
DECISION OF THE BOARD
For reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against a claim of service connection for right ear
hearing loss, as well as against claims of increased ratings
for residuals of right shoulder dislocation, lumbosacral
strain with narrowing of L5 - S1, and left ear hearing loss.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Right ear hearing loss was not present in service or
attributable to any incident or manifestation in service nor
has right ear hearing loss been demonstrated since service.
3. Residuals of right shoulder dislocation are manifested
primarily by subjective complaints of pain and by grinding
objectively demonstrated; the joint exhibits full range of
motion, without malunion.
4. Lumbosacral strain with narrowing of L5 - S1 is
manifested primarily by subjective complaints of rare aching
off and on, for which he takes no medication; there is no
muscle spasm or functional loss due to pain and the lumbar
spine exhibits full range of motion.
5. The veteran has level I hearing in the left ear; hearing
in the right ear is within normal limits.
CONCLUSIONS OF LAW
1. Claimed right ear hearing loss is not due to injury or
disease incurred in or aggravated by service. 38 U.S.C.
§§ 1131, 5107; 38 C.F.R. § 3.385.
2. A rating in excess of 10 percent for residuals of right
shoulder dislocation is not warranted. 38 U.S.C. §§ 1155,
5107; 38 C.F.R. Part 4, Code 5203.
3. A compensable rating for lumbosacral strain with
narrowing of L5 - S1 is not warranted. 38 U.S.C. §§ 1155,
5107; 38 C.F.R. 4.40, Part 4, Code 5295.
4. A compensable rating for left ear hearing loss is not
warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.385,
4.85 and Part 4, Code 6100; effective December 18, 1987.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that we have found that the
veteran's claims are "well grounded" within the meaning of
38 U.S.C. § 5107. That is, we find that he has presented
claims which are not implausible. We are also satisfied
that all relevant facts have been properly developed and
that no further assistance to the veteran is required to
comply with the duty to assist mandated by 38 U.S.C. § 5107.
I. Right Ear Hearing Loss
Right ear hearing loss was not noted during service or on
audiologic testing performed for service separation.
Hearing in the right ear was also found to be normal on
audiologic examination by the Department of Veterans Affairs
(hereinafter VA) a few months after the veteran had
completed active duty. The record does not establish a
right ear hearing loss of service onset, as would be
required for a grant of service connection under 38 U.S.C.
§ 1131; 38 C.F.R. § 3.385.
II. Residuals of Right Shoulder Dislocation
Service department treatment entries reflect complaints of
right shoulder pain which developed after the veteran had
sustained right shoulder trauma during physical training.
Physical examination in March 1989 revealed full range of
motion of the right arm and shoulder. There was tenderness
of the acromioclavicular joint to palpation. On VA
examination in June 1991, the veteran reported experiencing
right shoulder pain, if pressure were placed on the
shoulder, as with lifting or pushing. It was found that the
shoulder exhibited full range of motion and good strength.
X-ray examination of the shoulder was negative for
separation or dislocation. When he was subsequently
examined in June 1991, at an outpatient facility, it was
found that the right clavicle was prominent, although
nontender. The veteran was apprehensive with performing
range of motion of the shoulder. The shoulder exhibited
full range of motion, but range of motion was accompanied by
grinding.
The disability evaluation to be assigned for residuals of
right shoulder dislocation turns, in this case, on the
extent of impairment of the clavicle or scapula. There is
currently no X-ray or clinical evidence of dislocation,
nonunion or malunion of the shoulder joint. Current
symptomatology, principally involving complaints of pain and
objectively demonstrated grinding, is adequately reflected
by the 10 percent rating now assigned under 38 U.S.C.
§ 1155; 38 C.F.R. Part 4, Code 5203.
III. Lumbosacral Strain With Narrowing of L5 - S1
Service medical records reflect that the veteran was
hospitalized during March 1990 for complaints of low back
pain which had not responded to Motrin or to assignment to
quarters. He indicated that he experienced sharp,
nonradiating left-sided low back pain. Examination on
admission to the hospital revealed that straight leg raising
was negative bilaterally up to 80 degrees. There were
left-sided sacroiliac joint tenderness and mild
paravertebral lumbar spasm. Motor examination was 5/5 plus
throughout. Sensory examination was intact. Deep tendon
reflexes were 2/4 plus bilaterally. X-rays of the
lumbosacral spine were essentially within normal limits.
The diagnosis was lumbar spasm. By the time of the
veteran's discharge from hospitalization, low back pain had
responded to treatment. The veteran stated that he felt
much improved; he was able to stand totally erect without
any difficulties.
On VA examination in June 1991, the veteran acknowledged
that he experienced low back pain only intermittently; he
denied the use of medication for low back pain. The lumbar
spine was found to exhibit full forward flexion, while the
veteran had virtually full movement of the lumbar spine
through other ranges of motion. There was no abnormal
movement. The spine showed no deformities. No muscle spasm
or lumbar tenderness was objectively demonstrated.
In all, the record demonstrates that an exacerbation of low
back symptoms, precipitating inservice hospitalization,
resolved and that, currently, chronic lumbar strain is
essentially asymptomatic. The noncompensable rating now in
effect contemplates low back strain manifested by subjective
symptoms only, without any associated objectively confirmed
manifestations or functional impairment. 38 U.S.C. § 1155;
38 C.F.R. 4.40, Part 4. Code 5295.
IV. Left Ear Hearing Loss
Evaluations of unilateral defective hearing range from
noncompensable to 10 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average
hearing threshold level as measured by pure tone audiometry
tests in the frequencies 1,000, 2,000, 3,000 and
4,000 cycles per second. To evaluate the degree of
disability from defective hearing, the revised rating
schedule establishes eleven auditory acuity levels from
level I for essentially normal acuity through level XI for
profound deafness. In situations where service connection
has been granted only for defective hearing involving one
ear, and the appellant does not have total deafness in both
ears, the hearing acuity of the nonservice-connected ear is
considered to be normal. In such situations, a maximum
10 percent evaluation is assignable where hearing in the
service-connected ear is at level X or XI. (38 U.S.C.
1160(a) [formerly 38 U.S.C. 360(a)]; 38 C.F.R. 4.85 and
Part 4, Codes 6100 to 6101; effective December 18, 1987)
Service medical records confirm that the veteran has a left
ear high frequency hearing loss. VA audiologic examination
of the left ear in June 1991, at 1,000, 2,000, 3,000 and
4,000 cycles per second, showed that pure tone threshold
levels were as follows: 15, 15, 65 and 85 decibels (dB),
with an average of 45 dB; speech recognition ability in the
left ear was 96 percent correct.
Left ear hearing loss is rated at level I. For rating
purposes, the veteran's nonservice-connected right ear is
considered to have level I hearing. A noncompensable rating
is assignable for the veteran's left ear hearing loss under
38 U.S.C. §§ 360(a), 1155; 38 C.F.R. § 4.85 and Part 4,
Code 6100; effective December 18, 1987.
In reaching our determination that increased ratings are not
warranted, consideration has been given to the potential
application of pertinent provisions of 38 C.F.R. Parts 3 and
4, whether or not they were raised by the appellant, as
required by Schafrath v. Derwinski, U.S. Vet.App.
No. 89-114, slip op. at 6 (Nov. 26, 1991). In particular,
we find that the following section does not provide a basis
upon which to assign a higher disability evaluation.
The evidence discussed above does not suggest that right
shoulder or low back disabilities or left ear hearing loss
presents such an exceptional or unusual disability picture
as to render impractical the application of the regular
schedular standards, so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. § 3.321(b)(1).
For example, none of these disabilities has required
frequent periods of hospitalization, nor does any present
marked interference with employment.
As to all issues raised on appeal, we have considered the
doctrine of benefit of doubt under 38 U.S.C. § 5107, but we
find that the record does not provide an approximate balance
of positive and negative evidence on the merits. Therefore,
we are unable to identify a reasonable basis for a grant of
the benefits sought on appeal. We have carefully considered
the veteran's assertions, but find that they are of
insufficient probative value to change the outcome of the
case, when considered in light of the total evidentiary
record.
ORDER
Service connection for claimed right ear hearing loss is
denied.
Increased ratings for residuals of right shoulder
dislocation, lumbosacral strain with narrowing of L5 - S1,
and left ear hearing loss are denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.